# Amicus Curiae Brief — Jenkins v. Delaware > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0104%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 213 ## Text ae "Supreme Court nf the Ruited Sites” a _ OCTOBER, TERM, 1968 : ¢ SS eee teat es “Ne. 748 - =) oe * ° Tuornton A. JENKINS, : | against e - a ; a F s Tre State or DELAWARE, _Reipondend On Warr OF CERTIORARI ¥o. THE SUPREME Ones? OF THE Stare OF DELAWARE mod ~ —— - BRIEF OF THE ATTORNEY GENERAL OF ‘THE | — OF NEW YORK AS a — sis 3 = . ret Seen ¢ Sint Louis J. LerKow!Tz & a - Attorney General of the , . ae sie State of New York : . Office & P. O. Address . ous ee 80 Centre Street _ a New York, New York 10013 - SAMUEL A. ‘Himsnowrrz, .. First. Assistant gh aa General Amy JuvILER ~'~ Be re bee _ Assistant ‘Afforiey General ; ; of Counsel - _—— 2 a —_—_ . ——~— - ° Ee 249 Press of Fremont Payne, Ins., 80 Washington St., N. Y.—BOwling Green 9-8153 é - . . . 5 . . - e 7 oo a t- ‘ ‘ . . ° - ' ‘ - . ‘ e-.. , e . 7 r 4 * 7 »/ . . 2 . ° . o- A : ‘ - Pa . . ‘ 27 : . w . . . ‘ . ° . ‘ . ‘ * . rare i at a ti INDEX | | * PAGE is cae ie aciah ns Sea aa a ey oA eu sere . os Gr ¥ : Interest of Amicus peteteeeeteeeeeeeeteeeeeeetes ArcuMent—The strict sii of Miranda should — not be applied to retrials in cases originally. tried before June 13, SOE isk ss kink. thitteekvueks § O: Conclusion ........... eeteesces POE rere Se , ' Cases Sinliae ¥. United Blaites, 381 F. 2a 37 (9th Cir. Bere re ore wb eslecccrcesenece 4, 12, 15 Angelet:y. Fay, 381 U. S.. 643 es ceuwe pivecsehcaeke Beck v. State, 235 N. E. 2d 699 (Sup. Ct. Tad. 1968) . : 3 Berger v. California ............066. penee ete eeees . 6 Bloom v. Ilimois, 391 U. 8. 194 ...2...... citi a 38 Boone v. State, 3 Md. A. 11, 237 A. 2d 787 (Ct. of | _ Spec. App. Md. 1968), cert. dented ..:. .2, 7, 8,10, 12, 16 Bruton v. United States, 391 U.S.198 .......i.000.. 18 Carter v. Eyman, 281 ¥. Supp. 776 (D. Ariz. 1968) . 17 ay Creech v. Commonwealth, 412 S. W. 2d 245 (Ct. — Ky. 1967)... josle PR eee eee AAG 3,15 Dell v. ‘aie 231 N. BE. 2d 522. (Sup. Ct. Ind. 1967). .. seeeelenteeeereeazerteees et 11 8,9 12, 16 DeStéfanmo v.: Woods, Oe, MA 8 sc sass. 6 Duncan v. Louisiana, 391 U. OE Sree a ere 6 Escobedo v. I8nois, 378 U. Ss. 478 2 ee .-1, 2, 4, 6, 7,8 118.9 erties eles eee ee Ce ee ee ee ea ee” ee en SNe PAE SOA Ns oe Coe FL one a On ed eS OP eee ee a Lo r oak i = PAGE Puller x. Alesba, 393 U.S. eee of ee iGibson v. United States, 363 . F. 2d 146,.(5th ae SR Sr ek a as cosa sa ves 4, 13, 15,18 Gilbert v. California, 388 U. S. 268. ....5.... 00.000: 6,17 Griffin v. California, 380 U. S. 609 jar nestedonrenn | 6. ae a i v.,California, No. 750 OT 1968 (37 L. W.. de Te Dackoon, 64. Cal. 34 600. 39:Cal. Rptr. 220, 393 | -P, 24 420:(Sup. Ct. Cal. 1964 ............ aces 18 Jackson v. Denno, 378 U.S. 368 ..!...:..0645 ...11,17, 18 Jenkins v. State, 230 A. 2d 262 (Sup. Ct. Del. 1967) .2,13,15- Jenks v. State, 240 A. 2d 146 (Sup. Ct. Del. 1968) .. 2,15 Johnson y. New Jersey, 384 U: 8. 719 eabues 1, 4,5, 6, 7, 8 7 9,i1, 14, 17,19 Le orida, 392 U. S. 378 ..... catecacmeras Ae Pa at Walker; 381 U. S. 618 .......... .. 4,6, 8,14 In Re Lopez, 62. ‘A. C. 380, 42 Cal. tote. 188, 398, P.. ete _ 24.380, 383 (Sup. Of: Cal, 1908) 560. ee, wont 717 . Mapp v..Ohio, 367 U. S., 643. ick bak 6 Seana 5 ieiomade Arizona, 384°U. S, 436 ..1,2,3,4,5,6, 789,10," 11, 12, 14, 16, 17, 18, 19, 20 - . Weseer v. " Bouith. Carolina, 368. F. 24 458 (4th Cir. ODED si 5 : : F p = 7 / » « € } . * " . e ° . e . * ‘ . 4 . . . . ® . . ec: Ah . yh ; - a ‘ | Ine i ‘Supreme Court of the uited States _ OCTOBER TERM, 1968 Ant ° We mi oa ae 95 $ paar {3 | Tuoawron A. Jewxrhs, 7 ees Petitioner, 4 : against ~ _ , Tae Srare or DzLAwans, ii ea — Ow Warr or Cerrionaat ‘To THE SUPREME Count OF THE _ Stave or DELAWARE A. _ BRIEF OF THE ATTORNEY.GENERAL OF THE STATE OF NEW YORK AS AMICUS CURIAE | Question Presented fi Should the standards of Miranda v. Arizona, 384 U..S.. 436 and Escobedo v. Illimois, 378 U.S. 478 be retrospectively applied on .retrials to the admission of voluntary’ confes-. sions exempt from those standards’ — “Johnson v. New Jersey, 384 U. S. 719 . : * ‘Diy aos —- Amicus 3 The. granting of ouiiansl. Yin this case ie before _ the Court thé-question of whether the admissibility of vol- ° - untary, confessions validly introduced at trial. before June ‘te @ ; : a a a pe: Po "18, 1966, the date of. this Court's decision is’ Mifanda, should be affected by the explicit standards set forth in , Hint Optaton 12 Sha ietenmemt te: rateied thacentter: "As chief law enforcement officer for the State, the New. York Attorney General is. concerned with the effect which an adverse decision ‘would have upon a substantial hum- ber of criminal convictions. New. York is one of the seven states** whose highest court has held that the standards -of Miranda do not govern th on enacts of _Couteasions : in such cases. | Po © The ay ekki militess tttiinds Arizona, 384 U.S. 46 eed Eo edo v. Illinois, 378 U. S. 478 to retrials after june 13, 1966 and June 22, 1964, respectively, present the same ‘Because the decision in Miranda is so much broader in | pre _we will refer to the general question as the applicability of Miranda. " ** The States whose courts have so held are as follows: Delaware: Jenkins v. State, 29 A. 2d 262 (Sup. Ct. Del * 1967); Tenbins v. State, 240 A. 24 146 (Sup. Ct . Del. 240 A. 24146). _ , Tiinels: People v.'Worley, 37 Ul. 2d 439, 227 N. E. 2d ig? cot 5 AMO MD LE NOY Sore ye ie cma. Maryland: - Boome v, State,3 Md. A. 11, 237 A. 2d 787 (Ct. | of Spec. App; Md. 1968), cert. denied. : New Jersey: - State v. Vigliano, 50 N. J. 51, 232 A. 2d. 129 (Sup. Gt. N. J, 1967). New York: People v. Sayers, 22 N. Y. 24 571, 240 N. E. a = $40) (Ct. App. N.Y, 1968). _ North’ Carolina : site Branch, 1 N. C. App. 278, 16'S. E. 24 : N, rh ett State v. Lewis” 1, Nc Aon. , 161 S, E, 28 87 (Ge Aap Tennessee : Mop v. State, 426 S. W. 24 509) Sup. Ct. 968) ; Patten.v. State, 426 S. a 503 (hen Ct. enn. 1968). eam, hr pe rebmarpe They are as ‘follows: =e Alabama: tv S20 se: 24 Bas (mA , ee continued on following page) ae ; eg By SR Ss ee Ee ' [lies Chip. Othe -nhakn omit liken, iret ‘ele tn: de “ vision, the New. York cou) have relied on the: nan- T applicability of Miranda in’ i , dey eel dona : ret See mils, be dons many” reversals *< of /criminal | sodvicsiona: satliedeite ae sitive to the rights of defendants 4 c a — J (Footnote continued from previous ee Arizona: State v. Brock, 101 Ariz, 168, 416 P. 2d Ol (Sup. Ct Ariz. 1966). ) California: People v. Doherty, 59 Cal. Rptr. 857, 429 P: 24 3 177 .( Sup. Ct. Cal. 1967); People v. Collins, 66. pa i Eee Cal. 497, 438. P.. 33 (Sup. Ct, Cal. In “st Bank 1968); but see People v. Jockson, © Cal. ‘Rg 208, 28 Sp, Can Bk Hawaii: State v, Ryis, 49 Ham, 504. 421 P. 2d 305 (Sup. Indiana : 2d 522 ( » Ct. “Ind. ; : v, State; 23 N, E.28 (Sup. Ct . Kansas: Kat. 279, 416 P. 24 290 Kintiscky: ©. ‘Creéch v,-Commoteesith, 412 5. W. 24 245 (ce ; 2 App, Ky. 1967). |. Wisconsin: ‘State y. Shoffner, 31 Wis. 24 412, 143 N. W. 24: "| 458. (Sup. Ct. Wis, 1967). a The ines got: bein, cotiideréd ‘ia @ny Reported. case in Rhode Isl: —— in reversing a conviction on other grounds the ‘Court stated that it did not reach the question of whether Mirondo epplied oo retrial, but indicated that. it. m so hold, © State v.. Bradshaw, 221 A. 24 815, 817.n. 1 (Sup. Ct. R. 1. 1966). ' Five Circuit .Courts of Appeals have held that’-Miranda does _ apply on retrial ‘They-are as follows: / f Third Circuit: « Virgin Islands v. Lovell, 378 F: 2d 799 (3rd Cir. - * 1967); also +see United States e rel. Pierce V. *- peas continued on ollowing page) Thus, in New York a viiiastdameibe number of. cases - -would be directly affected by this Court’s reversal * the deci- sion of the Delaware Supreme: Court. ; The New York Attorney General has eppasied cities as: - counsel or“amicus in several of tlie cases dealing with the ap- plicability to earlier convictions of newly developed. rules enunciated by this Court. Linkletter v. Walker, 381 U. &2 618; Angelet v. Fay, 381 U. S. 643; Johnson vy. New Jersey, 394 U. S. 7194 Stovall v. Denno, 388 U. S.. 293.° Also see: People v. MoQueen, 18 N. Y. 2d 337, 274 N.Y.S. 2d 88677. 21 N; E. 2d°550 (1966) in which the Court of Appeals _ held: that it would not give retrospective application to. - this Court’s ‘decisions in Miranda and. Escobedo. - Con- sistent with our position in-those cages, we urge in this: _ ‘brief that the Court adhere to its eed in Johnson. v. New Jersey not to disturb prior convictions in light ’ of the specific standards newly enunciated in Miranda and — not to require that those standards be applied-to past con- Victions merely because a retrial is ordered. This brief is limited to that question and does not deal with the specific facts of the instant case or the Fourth Amendment issue presented therein. - es (Footnote continued from previous poge ) .. © Pinto, 259 F. Supp. 729 (D.C.N.J. 1966), aff'd CT per curiam 374 F OA 472 (3rd Cir. 1967) rev’d %, 389 U. S. 31 (1967) ; but see Vigliano v. sh tesa - i; «390 F. 2d 55 (3rd Cir. 1968). + -, Fourth Circuit: Moorer v. South Carolina, 368 F. 2d. 458 eal ; . Cir. 1968),, .. Fifth Circui * Gibson v. United States, 363 F.2d 146 (5th Cie. . _ ) « Seventh Circuit oa States v. Phillips, 401 F. 2d 301 (7th Gir! $ ) Ninth Circuit: Amsler v. United States, 381 F.-2d 37 (otnaRir. | 388 F. 2d 675, (9th Cir. 1968). is) ' 1967 ) United States ex rel. Walker v.: “Young, ° ‘ a - Se ee ee os s . — ee — . . — = 2 as OE ms * 3 2g + ARGUMENT eee ae The dtstct stendonds: of Miieenda cbvald unt be a: 3 _ plied to retrials i in cases originally tried before@June 13,1966. In limitizig the effect of Miranda v. SEG 384 U. S. 436 to cases whose trials began after June 13, 1966 this “Court created a finite identifiable group of confessions whose admissibility was to be determined ‘by ‘‘meticulous”’ (Johnson v. New Jersey, 384 U. S. 719, 730), standards of . -voluntariness, but not -by. Miranda’s . positive regulations . . for in-custody interrogation: -As of June. 13,. 1966 any defendant, defense lawyer, prosecutor or judge eould de- . termine whether the admissibility of a confession would be judged by the standards of Miranda or on voluntariness : © alone. The discrete group of@confessions exempt from” » ‘Miranda were frozen. as of June 13. . Petitioner. J enkins, whose trial’ began on J anuary 10, 1966, knew after reading Johnson v. New Jersey that his - ‘confession was to be judged-on the basis of voluntariness. To disturb that position would cfeate unnecessary con- fusion in the administration of justice and violate the. very purpose of this Court’s de¥jsion in Johnson v. New Jerseyy supra. That purpose ‘was to limit the burden ereated by ‘the revolutionary standards in Miranda on the administration of justice and on law enforcement offi- cers who had justly relied on previous delineations of con- _ stitutional requirements. Few if any jurisdictions had fully’ met these standards previously. Johnson v. New Jersey, supra at 731. The purpose of Miranda, itself, was to set. ‘minimum constitutional standards for in-custody interroga- tion. Obviously, this decision looked to vei future rather than to the past. ; . The confession which is the subject m the instant case was made on March 17, 1965. The case of which it is a . part was first investigated and put before the jury begin- a » Re i a : ning on. January 10, 1966. In Johnson v. New: Jersey, supra, this Court specifically held that the admissibility of Jenkins’ confession at trial.was to be judged on the basis of voluntariness:alone. Application of the Miranda rule cannot cHange the interrogation which has already oc- curred nor expand the inyestigation to produce other evi- _ dence as a substitute for tthe allegedly invalid confession. _- The reasons which prompted this Court to limit. retro- active application of several pf. its recent decisions* re-_ quires those limitations be absolute and not subject to change. In the present era of revolution in the criminal law it would discourage state courts and lower federal _ courts from continuing to expand concepts of fairness to. criminal defendanits if they knew that reversal of a case would further jeopardize the prosecution. This is not merely an academic observation, for most of the courts which have dealt with the applicability of Miranda on retrial have been aware of the effect of their decisions on the future prosecution of the defendant, since they pre- dicted the problem on the reversal of the original trial — _. rather than on the appeal from ‘retrial. Of the 25 cases = ‘ rw which have dealt with: the issue of whether Miranda ought to apply on retrials, that question was decided by . the jurisdiction before rétrial in 20) In two of those cases the decision 0f whether to apply Miranda was made at the request of the prosecutor. People v. Worley, supra; Qrnith — v. State, swpra. In one case the decision was made after a ms pre-retrial mption to suppress the confession. People-v. Say- . ~ _.. * Linkletter v. Walker, 381 U. S. 618 (limiting: the: efféct of .Mapp v. Ohio, 367 U. S. 643); Tehan v. Shott, 382 U. S. 406 - (limiting the effect of Griffin v. California, 380 U. S. 609) ; John- son Vv. New Jersey, 384 U. S. 719 (limiting the effect of Miranda v. Arizona, 384'U. S. 436 and Escobedo v. Illinois, 378 U. S. 478); Stovall v. Denno, 388 U. S. 293 (limiting the effect of United States v. Wade, 388°U. S. 218 and Gilbert v California, 388 U. S. 263) ; DeStefano v. Woods, 392 U. S. 631 (limiting the. effect of Duncan v. Louisiana, 391_U. S. 145 and Bloom v. Illinois, 391 U. S: 194) ; Fuller v. Alaska, 393 U.S.-80 (limiting the effect of Lee v. Florida, 392 U.S. 378. . sede , | . -————s-" vi ers, supra. In dials four cases was the decision made after retrial. United States v. Phillips, supra; State v. Lewis, supra; Murphy v. State, supra; Boone vy. State, supra. ; The principal rationale for holding that Mirandd-should apply on retrial is reliance on the. word ‘trial’? in the ’ Johnson opinion : ; a ; ‘““We hold that Escobello ee only thore cases in — which the trial began after June 22, 1964, the date - of that‘decision. We hold further that Miranda ap- plies only to cases in which the trial began after the - . date of our decision one week ago [June 13, 1966]”. - 384 U. S. 719, 721. a phase ; : Indeed; most of the decisions which have’ applied Miranda to retrials have involved little or no discussion of e “the issue and looked no farther that word ‘‘trial’’. - The only case so holding-that involves: any discussion of the | question is People v. Doherty, supra, in. which California . ’ applied Miranda to rétrials. Of course, it should be re- . membered that California had anticipated the Miranda ~ rules in People v. Dorado, 62 Cal. 2d 338, 42 Cal. Rptr. 169, 398 P. 2d 361 (Sup. Ct. in Bank, 1965) which was applied retroactively to cases.on direct appeal. .In re Lopez, 62 © A. C. 380, 42 Cal. Rpth, 188, 398 P. 2d 380, 383 (Sup. Ct. Cal. 1965). By contrast, in four of those 13 courts — dissenting opinions discussed the issue fully. State v. Shoffner, swpra, 143 N. W..2d 458, 475; State v. Brock, supra, 416 P. 2d 601, 605; State v. McCarther, supra, — 416 P. -2d 290, 296; People v. Doherty, supra, 59 Cal Rptr. 857, 866. There also is very complete discussion sili of the issues in all of the cases which held that Miranda © ‘does not apply on retrial. -People v. Sayers, supra, State v. Branch, supra, Murphy v. State, supra, Vigliano. v: Thevos, supra, Boone v. State, supra. But see two dis- - sents People v. Sayers, supra, 240.N. E. 2d at 543 (based on the opinion of the Appellate Division. below. . People v. 3 “Sayers, 28-A. D: 2d 227, 284 N.Y.S. 2 481-2 [3rd Dept. _ 1967]) ; Boone v. State, supra, 237 A. 2d 787, 803. In the cases holding’ that Miranda should not apply on ; retrial,.courts have pointed to other language in Johnson — which supports their imterpretation: For instance, the ' reference to ‘‘futuré defendants”? as opposed to ‘‘past defendants’’ (Id, at 732) has frequently been cited. It has also been suggested that retrial does.not represent the inception of @ new case for purposes of - determining whether defendant has twice been put in jeopardy and ‘therefore should not be the inception of a new case for purposes of expanding the retrospective application of Miranda, Patten v. State, supra, 426 S. W. 2d 503, 505; State y- Shoffner, supra, 143 N. W. 2d 458, 475. While it is true that a number of jurisdictions have held that Miranda applies to retrials (see note at pp. 2-4). If this Court affirms the decision below it would not necesarily eee alter the indepéndent determination by other jurisdictions to apply Miranda. In Johnson vy. New Jersey this Court - specifically reserved the power of the states to‘. . . apply _ those standards in a broader _— of cases than is re- quired by this decision.’’ In any case, it is the logie eit the ‘iad ef Johnson Vv. New Jersey which is esseritial in determining the extent . - to which Miranda and Escobedo are to be applied retro- spectively. ‘Of course, the purpose of the cut-off date in Johnson was to limit retrospectivity even doo stringently than was done in Linkletter. Then see Stovall v. Denno. - - In Johnson this Court held that the purpose of the Miranda rule will not be defeated if it wére to be applied only to ‘‘future defendants’’. Since its primary, aim was - to change the circumstances in interrogation its ptirpose cannot ‘be. achieved at all in applying the decision retro- spectively. The reliance of law enforcement officers on- the previ- . ously enunciated standards of voluntariness have been well or described in this Court’s decision in Johnson 'v. New -. Jersey, swpra, at 731-3.’ That reliance is in no way altered because retrial is ordered for independent reasons. In- ‘a deed, it is likely that the dependence on the confession in - such cases would be increased because of whatever: defect couse the reversal in the first place. » In the interrogation, i in the investigation i in chief, iat in _ the preparation for trial, the confession was ‘undoubtedly _, an integral part of the prosecution’s case. Other evidence “may have been a direct result of this voluntary confession. — It is difficult’ enough to re-present @ case on retrial, some- » times ‘years after the events in question, without having to excise significant portions of reliable evidence. This Court in Johnson held that. the meticulous stand. ards of voluntariness were sufficient protection to ‘ i ‘g defendants’’. If anything, this is more true of defen who will be’ subject to retrial. They may well have an opportunity to challenge the voluntariness of the con- . - fessions at least if the prior determination has been faulty in any respect. See dissent in People v. Sayers, supra, 284 N.Y.S. 2d at 483. Furthermore, their claims have been thoroughly decided by the Court which: was careful ‘enough to reverse their convictions. In the courts wi eld that Miranda was inapplicable to retrial, the reversing courts did consider contentions ' that the admissions were ‘improperly ebtained. However, in 10 cases ruling the other way, the reversing courts refused to consider attacks on the confessions because they would either’ be inadmissible under Miranda, or at least had to 7 reconsidered i in rad thereof: ee Vv. South a — an possible that certain of eesti confessions were inad- - 2 10 "missile under‘either.standard (see, e.g., People v. Doherty, - State v.’ McCarther, in which certain admissions were declared: invalid) and that the casual adoption of the:rule applying Miranda to retrials avoided a more difficult deci- sion in the particular case. jn which it was enunciated. _. Indeed, it is possible that the confession could have pro- , oe -dueed:: -other- evidence~whi ~might-be- similarly.inadmis- ‘sible as fruit of the poisoned/tree People v. Jackson, supra, — 429°. 2d 600, 603. Cf. People v. Chapman, 67 Cal: Rptr. 601 (Ct. App., 2d Dist. Div. 4, 1968). Thus it can be as-. ‘sumed that retrial would be impossible in a substantial iwumber. of cases if the Miranda rules were applied. For "| instance, in People-v. Sayers,.22 N. Y. 2d 571, 240.N. E. 24 540 (Ct. App. N. Y. 1968), the case in which the New York Court of Appeals held that Miranda did not apply to re-. trials, the District Attorney had appealed the suppression ~ of the confession. In order to do this under Code: of Criminal Procedure $§ 518(6), 518-a Ke was required to af- . firm under oath that trial would be impossible without the use of the confession. Another instance where retrial would be impossible without the confession in question is — presented by~the Maryland case, Boone v. State; supra. Defendant -Boone‘was indicted with three other persons _ charged with felony murder. His trial was severed from that of his co-defendants and he was granted a change of venue. The jyry. returned a verdict of guilty of mur- der, without specifying the degree, in that trial which took _place before the decision of this Court in Miranda. A new trial was granted and held after Miranda. The evidence against him consisted of testimony of One of his co-defend- ants which was corroborated by a substantial amount of — evidence. The Court on retrial had applied the standards - of Miranda and had guppressed Boone’s confession which had previously been found. to be voluntary. On appeal 3 the ‘Court of ‘Special Appeals held that without the confes- ei i a sion there was insufficient corroboration of the identity of Boone. However, it held that the court below had erred. ~ . Tule that Miranda should not apply on retrials.. In Johnson y. New Jersey, supra, this Court held that the procedure for testing the voluntariness of a confession was adequate ‘‘to protect’the integrity ef the trath- ~~~. determining process :-. .”’. Id. at 729. Courts and prose- cutors have relied on this procedure in cases tried. before . June 13, 1966. As this Court specifically indicated: in Johnson ¥. New J ersey, supra, the standards of voluntari- _ in suppressing the confession and established Maryland’s_ . ness‘ have become stricter in recent years (Id. at 730). In many of the cases which will be affected by the,rule which - this Court adopts in this case the admissibility of the . confession has been considered in more than one proceed- ing. In particular, the decision of this Court in Jackson v. _ Denno, 378 U.S. 368 required a new hearing in a large number of cases. That decision is of particular signifi- cance when read in the light of Johnson v. New Jersey. It requires a severable legal determination on the issue of © - voluntariness of the confession. Therefore, if the stand- ards of Jackson v. Denno have been met at the original | _ trial there would be no necessity of redetermining the ad- missibility of the confession on retrial. See Justice’ Herlihy’s dissent in People v. Sayers, supra, 284.N.¥.8. 2d 481, 482. Combined with the meticulous test of voluntariness and the severability of that proceeding from | the trial in chief there is no reason to elimingte. previously . adrhissible confessions merely because a case is ordered retried. vie tee : There is only one valid distinction between general retrospectige application of Miranda and the specific retro- _.-Spective application of Miranda on retrials. That is the “Ss f 4 -seope of its'interference with the administration of justice. This distinction was’ made by the California Supreme c - a i an pentmenin 12 Court in People ¥. Doherty, eupra, 59 Cal. Rptr. 857 at 863. f . Since California had already adopted the Miranda rule, . the burden orf the administration of justice in that state was considerably less than that experienced in other states. ‘Farthermore, subsequent developments .in the criminal law have increased the likelihood of rétrials which would be affected by this rule. We are in a period of convulsive ~ change in criminal practice. There is practically no area of criminal law which is not experiencing dramatic changes.. _ Thus, reversals and subsequent retrials in b thts area have become increasingly commion. — The cases cited in the note on pp. 24, supra, offer in- \teresting examples of the span of issues on which reversal in criminal cases may be based. They range from technical questions of the number of jurors in the jury room (Patten _ v. State*) -to